Reporters subpoenaed for BALCO leak investigation

SAN FRANCISCO (AP) – Five people linked to the Bay Area Laboratory Co-Operative were convicted of doling out steroids to elite athletes. But in an ironic twist, two San Francisco Chronicle writers who reported on the probe could end up serving more jail time than any of them.

Lance Williams and Mark Fainaru-Wada are the latest reporters to become entangled in the federal government’s ramped-up efforts to investigate leaks. They have been subpoenaed to testify before a grand jury investigating who leaked them the secret testimony of Barry Bonds, Jason Giambi and others.

The Chronicle, which published the testimony in a series of stories beginning in late 2004, is challenging the subpoena, arguing that the First Amendment protects the reporters and their sources.

Both reporters say they aren’t going to talk – which means they could be fined and jailed until they divulge their sources, or sentenced to a fixed term for contempt.

“Of course, we are going to stand up for our sources and we would never betray them,” Fainaru-Wada said.

A day in jail would be longer than the probation sentences for BALCO vice president James Valente and track coach Remi Korchemny, who both pleaded guilty to distribution charges.

On the question of whether reporters are shielded from revealing their sources, courts have gone both ways.

In the 1972 case Branzburg v. Hayes, U.S. Supreme Court Justice Byron White ruled that reporters, like everyone else, must “respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”

Over the years, though, Branzburg was largely ignored. Judges more often sided with Justice Lewis Powell, who wrote separately in the same case. He urged the judiciary, before ordering reporters to testify, to balance the First Amendment rights of journalists against the public’s right to know.

That changed in 2003, when the Chicago Sun-Times and Chicago Tribune lost a bid to protect their reporters from divulging recordings of interviews of a witness in a terrorism case. A federal appeals court, citing Branzburg, ordered disclosure.

“Things have been going to hell in a hand basket since then,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

The same case was successfully invoked in the investigation to find out who leaked the name of CIA agent Valerie Plame.

New York Times reporter Judith Miller spent 85 days in jail last year for refusing to testify in that case, which led to perjury and obstruction of justice charges against Vice President Dick Cheney’s top aide, Lewis I. “Scooter” Libby.

In November 2004, Rhode Island television reporter Jim Taricani spent four months in home confinement for refusing to disclose who gave him a videotape that showed a city official taking a bribe.

More recently, the Justice Department has been examining whether classified information was illegally given to The Washington Post about a network of secret CIA prisons in Eastern Europe and elsewhere. It’s also probing who told the New York Times about a secretive Bush administration program to eavesdrop on Americans’ electronic communications.

All are part of what some media and legal experts see as a coordinated effort by the Bush administration to crack down on leaks to journalists.

It would look bad, he said, if the government didn’t try to out the source of the leak. That’s because a different federal grand jury is now probing whether Barry Bonds committed perjury when he testified in 2003 that he didn’t knowingly use steroids.

“Each side has meritorious arguments,” he said.

The government suspected the leak in the BALCO case came from Conte, and agents searched his San Mateo house to bolster that view. Conte and others pointed to the government as the source.

San Francisco U.S. Attorney Kevin Ryan demanded an inquiry.

“Violations of grand jury secrecy rules will not be tolerated,” he said.

But as far as leaks go, this one clearly favored the government.

While Bonds’ attorney decried it as a vendetta to belittle the Giants slugger, the Chronicle stories, which developed into a book called “Game of Shadows,” paved the way for Major League Baseball to adopt stricter steroid rules. Professional sports began testing for drugs that they previously could not detect, and the government increased penalties for steroid dealers.

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